U.S. v. GOSNELL

The opinion of the court was delivered by: TERRENCE F. McVERRY, District Judge

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER OF COURT

Defendant, Edwin Gosnell, was indicted by a Grand Jury on
January 13, 2005, and charged with 131 counts of illegal
distribution of controlled drugs in his capacity as a registered
pharmacist.

On June 13, 2005, Defendant, through counsel, filed several
pretrial motions, including the instant MOTION TO SUPPRESS
STATEMENTS BY DEFENDANT AND PHYSICAL EVIDENCE (Document 15).

On July 29, 2005, the Court conducted an evidentiary hearing on
the Motion to Suppress. At the hearing, all parties were
represented by counsel who presented and argued the issues
skillfully and effectively. Louis Colosimo, an investigator with
the U.S. Drug Enforcement Agency, testified on behalf of the
government. No other witnesses testified.

The central issues at the hearing were whether Defendant
voluntarily consented to the search of his vehicle and residence
and whether Defendant voluntarily gave statements, both oral and
written, during his interview.

At the conclusion of the hearing, counsel for Defendant
requested additional time within which to file a supplemental
brief in support of the motion to suppress. The request was
granted by the Court and the final deadline for filing a
supplemental brief was August 12, 2005. However, on or about August 16, 2005, counsel for Defendant
advised the Court that she would not be filing a supplemental
brief.

A transcript of the testimony adduced at the suppression
hearing has not been transcribed to date; however, the Court is
prepared to issue its Findings of Fact and Conclusions of Law
based upon its notes, recollection, and hearing exhibits.

The Court will discuss primarily those basic facts which are
relevant to the motion and except as otherwise indicated the
following facts are basically unrebutted. Based on the testimony
and evidence presented at the suppression hearing and the
applicable law, the Court enters the following Findings of Fact
and Conclusions of Law:

FINDINGS OF FACT

1. On March 19, 2003, Louis Colosimo ("Colosimo"), an
investigator with the U.S. Drug Enforcement Agency ("DEA") was
contacted by Debbie Healy ("Healy"), loss prevention officer for
Eckerd Drug Store ("Eckerd"). Healy informed Colosimo that an
internal investigation indicated that Defendant, Edwin Gosnell,
was filling prescriptions for Oxycodone that were fraudulent.

2. On March 21, 2003, Colosimo met Edward Cartwright
("Cartwright"), an officer with the Pennsylvania Office of
Attorney General, Bureau of Narcotic Investigation, in the
parking lot of the Eckerd store where Defendant was employed as a
pharmacist. The purpose of the meeting was to interview Defendant
when his shift ended. Defendant did not know the officers were
coming. Colosimo may have arrived at the parking lot at
approximately 11:30 a.m. or noon; he thinks Cartwright arrived
around 9:30 a.m. 3. Defendant's shift ended at approximately 2:00 P.M. Colosimo
and Cartwright were in a parked unmarked vehicle waiting for him
to come out of the store. At approximately 2:15 p.m., Defendant
approached his car; the officers then got out of their unmarked
car, approached Defendant, identified themselves, and told him
that they wanted to speak with him. Agent Cartwright asked
Defendant if he had a weapon. Defendant replied in the
affirmative as he had a 9mm handgun in his front pants pocket.
Agent Cartwright then secured the weapon.

4. Cartwright then proceeded to read to Defendant his Miranda
rights. Defendant verbally waived his rights and agreed to
cooperate in the investigation. The Miranda warning was given
orally in English and Defendant appeared to fully understand it.
Colosimo testified that Defendant appeared to be oriented as to
time and place and exhibited no signs of confusion or impairment.

5. Colosimo then asked Defendant for his consent to search his
vehicle, to which Defendant agreed. Defendant signed a Consent to
Search form which authorized Cartwright to search his person, his
car (a 1999 Chevrolet Monte Carlo) and his residence located at
5978 Dublin Road, Bethel Park, PA. See Consent to Search,
Exhibit 1. Colosimo testified that Defendant understood that the
Consent to Search authorized Cartwright to conduct a complete
search of his person, vehicle, and residence. Prior to the
execution of the Consent, the only question asked of Defendant
was whether he had a weapon.

6. Defendant was not handcuffed at the time he signed the
Consent to Search and the search had not occurred prior to his
signing the Consent to Search. Colosimo did not have a gun on his
person; Cartwright had a gun, but he never took it out. Colosimo
could not recall whether Cartwright's weapon was visible or whether
Cartwright was wearing a suit jacket. The Consent to Search was
signed by Cartwright and Colosimo as witnesses. No other officers
were in the area. Healy was in the vicinity, but she did not
participate in the search.

7. The search of the car revealed the following: 2 written
prescriptions for a patient named John Linden; a check made out
to cash in the amount of $1000.00, signed by Daniel Dawes, with a
notation on it which stated for "work on house;" and a few other
prescriptions. An overcoat and smock were also in the car. In the
overcoat, two prescription bottles were found; in the smock, a
few tablets of controlled substances were found.

8. Healy was present during the search of the vehicle although
she did not participate in the search. She stood with Defendant
while the search was conducted.

9. Immediately after the completion of the vehicle search,
Colosimo asked if Defendant would answer some questions regarding
the investigation. Defendant agreed, and the Defendant,
accompanied by the officers, walked back into Eckerd ...

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